DEMETRIC FOWLER v. ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN
No. CV-20-649
ARKANSAS COURT OF APPEALS
April 14, 2021
2021 Ark. App. 159
BRANDON J. HARRISON, Chief Judge
DIVISION III; APPEAL FROM THE LINCOLN COUNTY CIRCUIT COURT [NO. 40JV-19-12]; HONORABLE EARNEST E. BROWN, JR., JUDGE; AFFIRMED
BRANDON J. HARRISON, Chief Judge
Dеmetric Fowler appeals the termination of his parental rights to his two children. (Marshay Johnson, the children‘s mother, is deceased.) Fowler challenges both the statutory grounds for termination and the circuit court‘s best-interest finding. We affirm the circuit court‘s order.
On 1 April 2019, the Arkansas Department of Human Services (DHS) removed two-year-old twins BF1 and BF2 from their mother‘s custody. Johnson admitted that she had bеen using marijuana and ecstasy pills and that she was unable to take care of the children. DHS placed the children in the home of Gail Knight; the children had been staying with Knight on and off since November 2018.1 Fowler was identified as the children‘s putative
The probable-cause order noted that Johnson had stipulated to probable cause and appointed legal counsel to represent both Johnson and “the father.” Fowler and his attorney attended the adjudication hearing, and the adjudication order found that Fowler had “presented evidence proving that he has established significant contacts with the juvenile[s]” and that his “rights as a putative parent have attached.” The court ordered DHS to prоvide Fowler with a psychological evaluation and ordered Fowler to visit the children regularly. The court adjudicated the children dependent-neglected based on neglect.
The court conducted a review hearing in September 2019; the resulting order found that Fowler had been partially compliant with the case plan and orders of the court and had been attending outpatient drug treatment and counseling. However, he continued to test positive for THC. The court noted that Fowler‘s visitation would continue to be supervised as long as he continued to test positive for illegal substances.
The court scheduled a permanency-planning hearing in March 2020, but it was rescheduled for 11 May 2020 due to COVID-19. The May 11 hearing was not held, however, because the pаrties had reached an agreement to place the children in the permanent custody of Gail Knight. Before the agreement could be signed by all parties, Johnson was stabbed and died from her injuries. On 2 June 2020, DHS requested a special hearing to address the situation.
The circuit court convened a hearing on June 4, and Fowler stated that he wanted to accept responsibility fоr the children and participate in the case. He expressed concern with the children‘s placement with Knight because she and her son were currently under
Just over a month after the hearing, on 6 July 2020, DHS petitioned to terminate Fowler‘s parental rights on two grounds: (1) the juveniles had been adjudicated by the court to be dependent-neglected and had continued to be out of the custody of the noncustodial parent for twelve months, and despite meaningful efforts by DHS to rehabilitate the parent and correct the conditions that prevented the children from safely being placed in the parent‘s home, those conditions had not been remedied by the parent; (2) other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juveniles in the custody of the parent is contrary to the juvenile‘s health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent‘s circumstances that prevent the placement of the juvenile in the custody of the parent. See
In his response to the petition, Fowler argued in part that DHS had focused on providing services to Johnson, not to him, and that he had “attempted to do all things asked of him to be able to obtain custody of the minor children[.]”
The circuit court convened a hearing on 10 August 2020. Fowler testified that the children had been in foster care over half their lives because their mother had a drug problem. He said that he had been somewhat involved “in and out оf court here.” He stated that he had completed a psychological evaluation but had not been to counseling in
Felicia Cobb, the family service worker, testified that the children had never resided with their father. She said that he did not have a significant relationship with the children and that he had generally not made himself available for services from DHS. Cobb explained that the children were currently placed with their step-grandmother and that she had been exercising visitation with the сhildren while they were in foster care. Cobb said that the children have special needs and are receiving some occupational and physical therapies. Cobb opined that it is in the children‘s best interest to have permanency and to be in a stable, safe environment. She also expressed concern with Fowler‘s mental-health situation. On cross-examination, Cobb stаted that DHS had tried to visit Fowler‘s home but he was not living there and had not responded to texts and phone calls.
Kimberly Johnson, an adoption specialist, testified that the adoption database had identified 258 possible adoption matches for the children and that she saw no barriers to DHS finding a permanent placement for them.
Bea Buck, Fowler‘s fiancée, testified that she and Fowler had been working on his house but that several issues, such as electrical outlet covers and some plumbing, still needed to be addressed. She expressed willingness to undergo a background check by DHS. She explained that she is employed in New York but had been in Arkansas taking care of her brother. Buck said she and Fowler planned to be married but had not set a date. She stated that she аnd Fowler had known each other approximately six months.
From the bench, the circuit court ruled that DHS had proved the failure-to-remedy statutory ground for termination and that termination was in the children‘s best interest. The court‘s written order included the following findings:
The court finds that the juveniles have been in foster care for more than half of their life. Though they were not removed from his custody either time they have been placed into foster care, the father has been given every opportunity to be involved and to gain custody of them. In 2017, the Court found him to be the legal father and was glad to see him involved in the case. However, he just disappeared in early 2018 through the closure of the case in November of 2018. It was less than six (6) months later that they were removed from their mother again.
In this case that opened in April of 2019, the father appeared before the Court in May of 2019 and the Court was very clear that the father needed to remain involved and had a very good opportunity to obtain custody due to the mother‘s long history with the Department and the Court with her older children. Despite services being offered by the Department, he again disaрpeared from September 2019 until the mother‘s murder in late May of 2020. Only then did Mr. Fowler appear again. He attempted to claim that the Court and DHS were only working towards reunification with the mother, but there is no reason the father should have deferred to her knowing her history.
He admitted a life-long history of mental health issues and still refused to complete mental health treatment. He admitted an attempted suicide and still refused to complete mental health treatment. He has put getting a safe house in place before addressing the other severe issues that prevent reunification. He has no steady source of verifiable income. He has no bank account. He has no driver‘s license. He has no transportation. He has only recently obtained а home and is still trying to get plumbing installed and the home ready for children. He has consistently tested positive for marijuana and only since July 1, 2020 has he obtained a prescription for it. He claims it is for PTSD, yet he still has not completed mental health treatment. He has not been visiting the children, and it is time they have permanency. The Court is no longer willing to look at giving him more time. The Court has to look аt the best interest of the juveniles from a timeframe consistent with their needs. They have been in foster care for most of their life, and despite opportunities for services and pep talks by the Court, placement with the father cannot safely happen.
The court also found that the children are adoptable and that they faced potential harm if placed with Fowler “because he is still not addressing his mental health issues and still has no stability to provide for their needs.” Fowler has timely appealed from this order.
A circuit court‘s order that terminates parental rights must be based on findings proved by clear and convincing evidence.
On appeal, we will not reverse the circuit court‘s ruling unless its findings are clearly erroneous. Dinkins, supra. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In determining whether a finding is clearly
I. Statutory Factors
Although the circuit court terminated Fowler‘s parental rights based only on the failure-to-remedy ground, he addresses both grounds pled by DHS in its termination petition. On the failure-to-remedy ground, Fowler contends that DHS failed to prove that he was a “parent for the twelve-month time period.”
In his case, Fowler argues, he was originally identified as a putative father and was not identified as a party or a “parent” until DHS filed its 2 June 2020 motion for a special hearing. The permanency-planning order, filed on July 27, listed Fowler as a parent and identified him as the children‘s legal parent. But this was less than a month before the
In addition, he challenges the meaningful-effort element of the failure-to-remedy ground and the offer-of-appropriate-services element of the subsequent-factors ground pled by DHS. He asserts that DHS failed to present sufficient evidence that it made the required efforts to provide necessary services to assist him in reunifying with his children. He contends, as he did below, that most of DHS‘s efforts had been directed toward Johnson, not him, and that the efforts that had been directed toward him had been insufficient to address his primary issues—laсk of counseling and the status of his home. He admits his compliance with the case plan and court order was not “flawless” but argues that he expressed his willingness to do whatever was necessary to reunify with his children.
DHS first responds by citing an April 2018 domestic-relations order, which was entered into evidence at the termination hearing, that established Fowler as the children‘s father and set his child-support obligation. DHS also argues that Fowler‘s interpretation of Earls is inaccurate and notes that this court has previously rejected a similar argument:
Elliott does not contest the fact that DHS proved that A.E.‘s life was endangered. His only argument is that because paternity was not established before the incident and he was not made a party until October 20, 2017, Elliott “was not a parent” when the child was injured. This argument has no merit.
The Juvenile Code‘s definition of “parent” includes a man who “has been found by a court of competent jurisdiction to be the biological father of the juvenile.”
Ark. Code Ann. § 9-27-303(40) . We have explained that “paternity relates to the biological relationship between a man and child.” Ellis v. Bennett, 69 Ark. App. 227, 230, 10 S.W.3d 922, 924 (2000). The biological relationship between Elliott and A.E., which was the basis for the circuit court‘s finding, was present from the moment A.E. was born—the circuit court‘s order did not create it. The statute does not say that the abuse or neglect must be perpetrated by “someone who has been legally adjudicated
to be the juvenile‘s parent prior to the event.” It simply states “a parent,” and under any plain reading of that term, Elliott was a parent from the day his child was bоrn, even if the circuit court did not formally recognize him as such until later.
Elliott v. Ark. Dep‘t of Human Servs., 2018 Ark. App. 526, at 8–9, 565 S.W.3d 487, 492.
As to reasonable efforts, DHS notes that the circuit court specifically ordered that the goal of the case be “reunification with a fit parent,” and the court repeatedly found that DHS had offered services to both parents and made reasonable efforts to achieve this permanency plan for the juveniles. Fowler never appealed any of these prior findings or raised a reasonable-efforts argument at the termination hearing. See Phillips v. Ark. Dep‘t of Human Servs., 2018 Ark. App. 565, 567 S.W.3d 502 (holding that appellant failed to preserve a meaningful-efforts argument because appellant failed to appeal earlier findings and failed to object at the termination hearing). The ad litem additionally notes that the evidence clearly and convincingly showed that Fowler was offered and took part in services and that he did not participate in more services because, according to the case worker‘s testimony, Fowler had generally not made himself available.
We hold that Fowler‘s argument that he was not a “parent” for twelve months prior to the termination is unavailing, given that the evidence showed he was declared the children‘s father in April 2018, over two years before the termination petition was filed. We also hold that the circuit court did not clearly err in finding that Fowler had failed to correct the conditions that prevented the children from safely being placed in his home. Because we affirm on this ground, we need not address Fowlеr‘s argument as it pertains to the subsequent-factors ground, as proof of only one statutory ground is sufficient to terminate parental rights. Gossett, supra.
II. Best Interest
In making a best-interest determination, the circuit court must look at all the circumstances, including the potential harm of returning the children to their parents’ custody, specifically the effect on the children‘s health and safety, and it must consider the likelihoоd that the children will be adopted.
On appeal, Fowler does not directly challenge the circuit court‘s adoptability finding or its potential-harm finding. Instead, he asserts that he had been working diligently to complete his home, had worked to have his Medicaid reactivated so he could resume counseling, аnd had created a support system with his fiancée. He argues that the children were in the home of a relative and that “there was no evidence presented that giving [him] additional time to reunify with his children would be detrimental to the children.”
DHS argues that because Fowler failed to cite any legal authority to support his argument, this court should reject it. It also asserts that in determining best interest, thе circuit court may consider the same evidence introduced to support statutory grounds, and evidence of a parent‘s past behavior, such as drug use, may support a court‘s potential-harm finding due to its predictability of future behavior. See Furnish v. Ark. Dep‘t of Human Servs.,
The goal of
Affirmed.
HIXSON and BROWN, JJ., agree.
Tabitha McNulty, Attorney at Law, Arkansas Commission for Parent Counsel, for appellant.
Ellen K. Howard, Ark. Dep‘t of Human Service, Office of Chief Counsel, for appellee.
Casey D. Copeland, attorney ad litem, for minor children.